The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have no First Amendment protection at all. Second, the Supreme Court has approved broad prohibitions on non-citizens spending money on speech that is related to electoral campaigns. Third, the Court has indicated that the federal government might in its discretion act to deport immigrants because of their political activities. The Supreme Court should revisit these questions, because current case law is in tension with other principles of free speech law, especially the prohibition on identity-based speech restrictions as articulated in Citizens United v. FEC. As the Court explained there, the First Amendment protects the rights of marginalized people to have a voice, and does not allow the government to prefer some speakers over others based on their identity.
57 B.C. L. Rev. 1237 (2016).
Kagan, Michael, "When Immigrants Speak: The Precarious Status of Non-Citizen Speech Under the First Amendment" (2016). Scholarly Works. Paper 996.